Permit to build non-compliant: the same is the silence-assent?

The principle

The Institute of silence-assent responds to a typical legal evaluation by virtue of which the inertia ‘equivalent’ to the acceptance measure: this equivalence means nothing more than the effects promising from the case are subjected to the same regime of the administrative act, with the corollary which, if there are the requirements for the formation of silence-assent, The qualification can also be completed with regard to a non -compliant application. Instead, to consider that the case is productive of effects only where corresponding to the substantial discipline, it would mean subtract the securities thus trained in the discipline of cancellation: this differentiated treatment, however, would not even derive from an objective legislative choice, open -mindedly linked to the type of matter or procedure, but would operate (in a completely possible way) depending on the active or inert behavior of the PA

In addition, the setting to “convert” the validity requirements of the ‘silent’ case in as many constitutive elements necessary for its improvement, would vanify the simplification purposes of the Institute in root: No advantage, in fact, would have the operator if the administration could, without charges and procedural constraints, at any time disavow the effects of the demand. The goal of simplification pursued by the legislator – to make the relations between administration and citizens more shipped, without subtracting the activity of controlling the administration – is carried out by establishing that The (primary) power to provide for the course of the procedural termsubsequently residdating the only Possibility to intervene in self -protection on the structure of interests formed ‘silently’.

The admissibility of a late refusal measure would conflict with the principle of “collaboration and good faith” (and, therefore, of the protection of the legitimate assignment) to which the relationships between citizens and the administration (pursuant to art. 1, paragraph 2 bis, of law no. 241 of 1990) are informed. It remains that the silent consent does not constitute an ‘ordinary’ method of carrying out the administrative action, but constitutes a specific ‘remedy’ made available to private individuals in the face of the inertia of the administration, as confirmed by art. 2, paragraph 9, of law no. 241 of 1990, according to which the failure or late emanation of the provision constitutes an element of evaluation of the individual performance, as well as of disciplinary and administrative-accounting responsibilities of the manager and the non-compliant official.

In the same sense it also lays theobligation to provide (albeit drafted in simplified form) Compared to the manifestly inadmissible, inadmissible, inadmissible or unfounded questionssanctioned by art. 2, paragraph 1, of law no. 241 of 1990.

The reasons

That the silent consent is formed even when the activity subject to the provision of which the adoption is not compliant with the rules – as well as deductible from the systematic considerations carried out above – is confirmed by punctual and unique regulatory indices with which the legislator has clearly intended to disavow the thesis according to which the possibility of achieving the silent consent would be linked, not only to the course of the term, but also to the anniversary of all the elements required by the law for of the qualification.

In particular, the following provisions must be taken into account:

• the express provision of the office cancellation Even in the event that the “provision has been formed pursuant to art. 20”, evidently presupposes that the violation of the law does not affect the improvement of the case, but notes (according to the general canons) in terms of illegitimacy of the act;
• Art. 2, paragraph 8 bis, of law no. 241 of 1990 (introduced by the decree-law n. 76 of 2020, converted by law no. 120 of 2020)-in the part in which it states that “The determinations relating to the measures, authorizations, opinions, clearances and acts of consent in any case called, adopted after the expiry of the terms referred to in articles 14 bis, paragraph 2, letter c), 17 bis, paragraphs 1 and 3, 20, paragraph 1, (…) are ineffective, without prejudice to the provisions of article 21 noniens, where the conditions and conditions” – confirms that, after the term, to the residual administration only the power of self -protection;
• Art. 2, paragraph 2 bis – providing that “In cases where the silence of the Administration is equivalent to the acceptance provision pursuant to paragraph 1, without prejudice to the effects of silence in any case, the administration is required, at the request of the private individual, to release, electronically, aattestation about the course of the terms of the procedure and therefore of the acceptance of the application Pursuant to this article (…)“(A similar, but not identical, provision is contained in the last period of art. 20, paragraph 8, of the DPRN 380 of 2001)-establishes, in order to remedy the persistent uncertainties about the regime of formation of silence-consent, which the private individual has the right to a certificate that must only take into account the useless course of the terms of the procedure (in the absence of requests for documentary integration or preliminary investigations remained refusal measures promptly intervened);
• therepeal of art. 21, paragraph 2, of law no. 241 of 1990 who subject to the penalty those who had given the activity according to the form of silence-consent, “in the absence of the requisites required or, in any case, in contrast with the current legislation“;
• Art. 21, paragraph 1, of law no. 241 of 1990 – according to which: “With the report or with the application referred to in articles 19 and 20, the interested party must declare the existence of the requirements and the required legal requirements. In the case of false declarations or false attestations, the conformation of the activity and its effects to the law or the amnesty provided for in the articles themselves (…) is not allowed” -, from which it is deduced that, In the case of non -false statements, but simply incomplete, the silent assent is perfected anyway.

The specific case

In the specific case addressed by the Salerno judges, the application for the issue of a Building permit for a change in the intended use It was presented on 6 July 2024 and only on November 4, 2024 the Technical Office had sent the rejection notice and on January 23, 2025, that is over six months laterI had expressed their refusal.

Having clearly The building title for silence-assent already formedthe office measure was declared ineffective by the judges, like the previous notice of refusal.

Notes

(1) 8 1990, n. 241 Otherwise, in the same term, it communicates to the interested party that these acts intervened.
(2) DPR n. 380/2001.
(3) Tar Campania, Salerno, section II, sent. n. 1478/2024, which recalls, ex AliisCouncil of State, section VI, sent. n. 5746/2022; Section VI, sent. n. 10691/2022; Tar Sicily, Catania, section I, sent. n. 3220/2022; Tar Puglia, Bari, Section III, sent. n. 474/2023; Tar Friuli Venezia Giulia, sent. n. 318/2023; Tar Lazio, Latina, sent. n. 602/2023.